The Hook

The RCMP was directly instructed by a Special Prosecutor that “organized crime” had “not penetrated the B.C. Legislature” but used the phrase anyway to justify a December 28, 2003 raid there to seize documents, it was alleged in B.C. Supreme Court Thursday.

Defence lawyer Kevin McCullough, representing one of three former B.C. government aides facing corruption charges, read from a recently disclosed document that indicated David Harris, a member of the Special Prosecutor team, told the RCMP their planned news release was wrong two days before the raid.

“There was a lengthy voice mail from David Harris regarding the news release – that it gives the impression that organized crime had penetrated the Legislature – this is incorrect,” McCullough read. “Do not leave the impression that organized crime has penetrated the Legislature.”

But one day after the raid RCMP spokesperson John Ward told media that "organized crime has stretched into every corner of B.C.” and had reached “epidemic proportions in B.C.”

McCullough said the fact that the RCMP disobeyed instructions was critical to defence arguments that the investigation into his client Bob Virk and co-accused David Basi and Aneal Basi was “tailored and targeted” against them and away from elected government officials.

“Despite being told in the new disclosure not to do that, they did it. That’s very important to the defence,” McCullough said.

McCullough also raised the possibility of conflict or perceived conflict that could affect the case because forest company Doman Industries had hired the law firm of Harris and Bill Berardino while it was employing lobbyists Erik Bornmann and Brian Kieran of Pilothouse Public Affairs – both now key Crown witnesses. Berardino, who is the lead Special Prosecutor, was not in court today.

And McCullough read from another document that said a former provincial deputy minister had approached police, alleging he believed Harris and Berardino had received confidential leaked information from Doman Industries.

“These apparent leaked documents came from [David] Basi,” McCullough told Justice Elizabeth Bennett. “This wasn’t disclosed to us until the last month.”

“The interconnectedness of various players is highly ironic,” McCullough said, while adding he was not casting any aspersions on Harris or Berardino.

Special Prosecutor Janet Winteringham said that: “I’m not going to respond to allegations regarding Doman Industries – this is a disclosure hearing.”

And there were many more startling revelations at the day-long pre-trial disclosure hearing.

McCullough also carefully raised the issue of possible conflict regarding the role and withdrawal of the first Special Prosecutor in the case, Josiah Wood, currently a provincial court judge who has also served as justice of the BC Supreme Court and BC Court of Appeal.

Wood was briefly Special Prosecutor prior to the BC Legislature Raid, leaving that role on December 8, 2003. At that time he was practicing law with the firm of Blake, Cassels & Graydon.

“I am casting zero aspersions – I’m casting no negative aspersions on Mr. Wood,” McCullough began.

“The reason one would withdraw is due to a conflict when there’s potential of bias or perception of bias,” he said.

“If we learn the RCMP didn’t do or investigate certain things related to the conflict it may be very relevant,” McCullough said.

“If, for example, the basis of the conflict was that the clients of the firm were BC Rail, Mr. McLernon [John McLernon, then chair of BC Rail] the TD Bank, CIBC, it may be the conduct of the RCMP towards these organizations may have been poor or failed to deliver on the task,” he said.

Justice Bennett asked how long Wood was counsel on the case.

“Hard to say, but it’s clear a significant amount of work was done December 5, 6,7 [2003]. All day meetings, all day advice. That type of advice matters very much to us,” he replied.

“The RCMP were not following advice. They were getting advice but not following it,” he said.

Then McCullough raised the role of former BC Liberal Finance Minister Gary Collins, who employed David Basi as his senior Ministerial Assistant.

“Mr. Collins was a [RCMP] target December 5, 9, 12. He was under surveillance December 12,” McCullough said. “That was all happening when Mr. Justice Wood was on.”

“I have yet to see any sign that this was mentioned to Mr. Wood, that surveillance would be going on.

McCullough was referring to extensive police video surveillance of Collins when he had dinner at Vancouver’s upscale Villa del Lupo restaurant with two executives from OmniTRAX – one of two bidders for BC Rail and the company that hired lobbyists Erik Bornmann and Brian Kieran.

Bornmann and Kieran are alleged to have provided bribes to David Basi and Bob Virk in exchange for receiving confidential government documents about the BC Rail sale. They are both now key Crown witnesses against Basi, Virk and Basi.

The issue of the unidentified former deputy minister also received considerable time in court.

McCullough outlined an unusual complaint made to RCMP.

“In 2007 we received disclosure of a complaint made by an individual. I believe he was a lawyer at one point in time – a senior lawyer.”

“This person was a deputy minister of – at one point – one of the ministries involved in the trial,” McCullough continued. “This person makes a call to the RCMP alleging that Doman Industries had received certain information that this person viewed as confidential.”

“He advised he was previously working for Doman and that he believe that David Harris and – I take it – Berardino Harris – had received the confidential leaked info.”

“The former deputy minister complains that information had been leaked to Doman – that this information was provided for litigation and that Berardino Harris received this information.”

“This former deputy minister was working on a consultant basis for Doman. It appear that Berardino Harris at some point were acting for them and it appears that Bornmann and Kieran were also acting for them.”

At this point Special Prosecutor Winteringham interjected that she did not have the document and had not heard the information in it before.

McCullough then dropped another bombshell:

“These apparently leaked documents came from [David] Basi,” he said.

Bennett then asked when McCullough and the defence obtained the document.

McCullough replied that it was received in disclosure in the spring of 2007 but that he had not realized the importance of the conflict issue.

Then a former New Democratic Party cabinet minister’s name suddenly came up. Quoting from another document, McCullough read:

“I also don’t believe Moe Sihota or Rick Doman had any motive but the best interests of the employees.” Sihota was a minister under the Mike Harcourt and Glen Clark NDP governments, while Doman was CEO of Duncan-based Doman Industries, which has since been taken over by Western Forest Products.

Even more strangely, McCullough said the RCMP had obtained a document regarding the death of Erik Bornmann’s mother “for whatever reasons and we want to look at it.”

“The defence wants to be in the same position as the prosecution in regard to the star witness,” McCullough argued.

As if that wasn’t enough news for one day of court, the Supreme Court of Canada early today granted the Special Prosecutor leave to appeal two lower BC court rulings regarding testimony of a secret witness in the BC Legislature Raid case.

The decision will likely delay by up to a year the start of the trial of former BC Liberal government aides David Basi, Bob Virk and Aneal Basi on corruption charges related to the 2003 privatization of BC Rail.

No reasons for granting leave were given by the Court.

Michael Bolton, defence lawyer for David Basi, said outside BC Supreme Court that some pre-trial issues could be dealt with despite the decision but that it would definitely delay the start of the trial.

“It’s possible the appeal could be heard in March 2009,” Bolton said, but then the Supreme Court of Canada will take an undetermined amount of time to make its decision.

“It’s pretty difficult to predict” how long that would take, Bolton said.

The central issue is whether defence lawyers for the accused can be present in the courtroom to hear arguments as to whether a secret witness will give testimony in the trial.

The Crown argued that no one but Special Prosecutor Bill Berardino and his legal team and BC Supreme Court Justice Elizabeth Bennett should be permitted to hear the evidence, with defence lawyers, media and the public excluded in order to protect the identity of the witness.

But Bennett ruled the defence could be present for initial arguments provided they give an undertaking not to disclose any information discussed in court with anyone, including their clients.

The BC Court of Appeal upheld Bennett's ruling in a split 2-1 decision when Berardino appealed, leading the Special Prosecutor to seek leave to appeal at the country's highest court.

David Basi and Virk face breach of trust charges for alleging providing confidential government information about bids for BC Rail to lobbyist Erik Bornmann, who was then employed by one of the bidders. Aneal Basi is charged with money laundering for allegedly being a conduit for payments.

A police investigation originally connected to Victoria drug dealing eventually expanded into a full-blown political corruption case, culminating in a raid on the BC Legislature on December 28, 2003.

Basi, Virk and Basi were charged in 2004 but the case has been plagued by lengthy pre-trial hearings on disclosure of evidence to the defence. The province and RCMP have resisted disclosing some evidence for a variety of reasons, including cabinet privilege, solicitor-client privilege, informer privilege and secrecy required regarding police techniques.

A pre-trial hearing on vetting more than 300 RCMP documents continues today at BC Supreme Court and is unaffected by today's Supreme Court of Canada judgment.

But Special Prosecutor Bill Berardino and defence lawyers must now confer with BC Supreme Court Justice Elizabeth Bennett, who is hearing the case, about whether any other pre-trial motions can continue prior to the secret witness issue being adjudicated by the Supreme Court of Canada.

In July, Virk's lawyer Kevin McCullough told me outside the court that an appeal to the Supreme Court of Canada would result in a significant delay to the start of the trail.

"If the Special Prosecutor appeals this matter to the Supreme Court of Canada it's going to impact and delay this case," McCullough said. "We are hoping that doesn't happen."

"Our clients are anxious to get on - they've had their lives on hold for four and a half years and any further delay is something that neither counsel nor their clients are looking forward to. I hope it doesn't happen," he said in July.

The short text of the Supreme Court of Canada ruling means a long delay in the trial. Here is that announcement:

"GRANTED

Her Majesty the Queen v. Bobby Singh Virk et al. (B.C.) (Criminal) (By Leave) (32719)

The motions to expedite the application for leave to appeal and to seal the responses by the respondents Udhe Singh (Dave) Basi and Bobby Singh Virk are granted. The application for leave to appeal and the applications for leave to cross-appeal are granted.

Coram: McLachlin / Fish / Rothstein"

Bill Tieleman is a regular Tyee contributor who writes a column on B.C. politics every Tuesday in 24 Hours, the free weekday newspaper, also online. Tieleman can be heard every Monday at 10 a.m. on the Bill Good Show on CKNW AM 980. E-mail him at weststar@telus.net or visit his blog.